Destabilizing Tenancy Rights Is Not the Solution to Ontario’s Housing Shortage

Posted by Jonathan Robinson, JD Candidate, Osgoode Hall Law School on September 14, 2016

This article was first published on Huffington Post and has been reposted with the author’s permission. For more information on CELA's involvement in this issue, please visit our RentSafe page.

The Ontario government is quietly considering making changes to the Residential Tenancies Act, 2006, the legislation which governs the landlord-tenant relationship in Ontario. The proposed changes were open to public input until June 30th; however the lack of publicity—then and now—is disheartening. Although these changes are pitched as a way to increase the number of housing options for people who rent by choice or necessity, it seems the government believes increased choice must come at the expense of tenants’ rights. Tenants and other interested parties should not delay, but raise their concerns before the changes become law. Rest assured that many corporate landlords have already made their voice heard.

The government’s goal is to increase the number of “affordable, suitable and adequate” homes for Ontarians, and so it has proposed changes to the Act in order to incentivize small landlords to enter the market. Unfortunately, the incentives militate against the goal insofar as many of the proposals are designed to secure stronger safeguards for landlords and assume that tenants will be content with (possibly) more choice but (certainly) fewer rights. More problematic is that most of the changes are designed not to benefit small landlords, but all landlords. There is no reason why this must be so. The Act already differentiates between big and small landlords on many points. Yet most of the proposals would facilitate the eviction process for all landlords. Examples of this include:

not allowing a tenant to raise other issues at arrears evictions without prior disclosure to the landlord;

insisting on “proof” by tenants that all arrears are cleared before filing a motion to stay the eviction order;

loosening landlords’ needs to comply with the forms required to start the eviction process;

dispensing with the need for landlords to swear affidavits in support of the (few) motions and applications where they are currently required; and

limiting tenants’ ability to appeal to the Divisional Court.

Many things could and indeed should be said about each of these proposals. But let us concentrate on the first as landlord applications for arrears of rent are by far the most common type of application at the Board (approximately 65% of the 80,000 applications made each year; by comparison, all tenant applications account for only 9% of the total).

Sadly, disclosure is not required at the Landlord and Tenant Board for either party. Insisting that tenants must provide prior disclosure in order to discuss the disrepair they face is unfairly prejudicial. After all, it is an accepted point in law that a tenant is not bound to pay full rent for an apartment in disrepair. Regrettably, not all landlords honour their own maintenance obligations and many tenants, especially those living in the buildings where disrepair is the worst, are not as quick to litigate to enforce their rights as we might expect. As a last resort, tenants sometimes withhold rent in order to “force” landlords to live up to their obligations. Withholding one’s rent inevitably results in an eviction application. In such cases, it is hard to believe that landlords cannot guess what reason(s) might be the cause for the non-payment. Perhaps the most appropriate first step is not to seek eviction, but to investigate if the problem stems from, for example, disrepair or a lack of vital services. Regardless, denying tenants the ability to discuss anything they have not disclosed prior to the hearing would prevent the Board from ascertaining, as they are bound by the Act to do, the full picture of the tenancy. Thus, while this proposal may seem modest, it is one of Swiftian proportions.

Encouraging people to open up their homes so that others might find a home of their own is desirable. And Ontario should recognize that the homeowner renting out her basement is not in the same position as the corporate landlord who is in the business of profiting off people who, by choice or necessity, rent rather than own their home. But we should be leery of making changes that affect all landlords equally. If the “cost” of being a small landlord is too high for some to become landlords, let us focus on solutions for small landlords.

Let us also not forget that these “rental units” are people’s homes. If we destabilize renters’ tenure in what they call home simply to bring more rental units onto the market, can we be said to have helped solve Ontario’s housing problem? I think not.

Nor should we sit quietly by and wait to see what changes are made to the legislation: once changed, it will not be easy to roll it back. Affordable, suitable and adequate housing is desirable; and with a rental market of more than 600 000 units, renters have the numbers to push for changes that better balance the rights and responsibilities of renters and landlords alike. If changes are to be made, let them be made openly and with great fanfare—and with the input of the renters themselves.